State v. Miles, 49415

• Decision Date: 11 February 1963
• Docket Number: No. 49415,No. 1,49415,1
• Citation: 364 S.W.2d 532,9 A.L.R.3d 1266
• Parties: STATE of Missouri, Respondent, v. John Sherman MILES, Appellant
• Court: Missouri Supreme Court

Page 532

364 S.W.2d 532

9 A.L.R.3d 1266

STATE of Missouri, Respondent, v. John Sherman MILES, Appellant.

No. 49415.

Supreme Court of Missouri, Division No. 1.

Feb. 11, 1963.

J. K. Owens, Kansas City, for appellant.

Thomas F. Eagleton, Atty. Gen., Timothy G. Noble, Sp. Asst. Atty. Gen., Jefferson City, for respondent.

DALTON, Presiding Judge.

Defendant was charged by an information filed in the Circuit Court of Clinton County, Missouri, with the crime of stealing property having a value of more than fifty dollars, to wit: five diamond rings of the value of $700, the personal property of one F. H. Ames. On trial the jury returned a verdict of guilty of felonious stealing, as charged in the information, and assessed defendant's punishment at one year's imprisonment in the county jail. A motion for new trial was filed and overruled and, after judgment and sentence, defendant filed notice of appeal.

The transcript on appeal fails to show that defendant was formally arraigned and entered a plea of not guilty; however, defendant was represented by counsel and announced ready and went to trial on the 11th day of January, 1962. In view of this record the failure of the transcript to show formal arraignment and a plea of not guilty does not constitute reversible error. See Section 546.020 RSMo 1959, V.A.M.S.; Supreme Court Rule 25.04, V.A.M.R.

Appellant has not favored us with a brief and it will be necessary for us to examine the assignment of error in his motion for a new trial. One of these assignments is that the court erred in overruling defendant's motion for a judgment of acquittal tendered at the close of all the evidence. It is, therefore, necessary for us to review the evidence favorable to the State.

The State's evidence tended to show that one Floyd Herbert Ames was the sole owner of a jewelry store located in Cameron, Clinton County, Missouri, and that on March 25, 1960, a man and a woman entered his jewelry store and asked to look at some men's diamond rings. Mr. Ames was not acquainted with either of the parties at that time, but at the trial he identified the defendant as the man and he named Helen Mae Morris as the woman. They entered his store about 3:30 p. m. and Mr. Ames, in waiting on them, obtained a tray of rings from his safe which contained two men's rings with diamond settings. He placed the tray on the counter and exhibited the rings to the parties. Defendant said he liked the larger of the two rings 'pretty well.' Thereafter, defendant asked Mr. Ames if he had any larger diamonds. Mr. Ames replied that he had one, and he also had some mountings to show him. Mr. Ames then obtained a larger stone and about six mountings and stepped up front to better show them to defendant. In doing so he had walked some ten feet forward from where they had looked at the other rings in the tray on the counter.

While Mr. Ames was exhibiting the larger stone and the mountings to defendant, defendant's companion, Helen Mae Morris, would walk back and forth to where Mr. Ames had placed the tray containing the other rings. Defendant would frequently ask her opinion of the different mountings presented to him, and he would say he didn't like some and did like others. The lady 'always would say, 'I like that one, but I like this one back here too.'' This occurred three or four times and finally defendant said: 'I think that I like this one, and I will probably be back to have you mount this one up for me, but I want to think about it a few minutes.' Defendant and his companion then left the jewelry store and Mr. Ames went back to check the tray on the counter and he promptly noted that the man's ring they were looking at was not there. He immediately went to the door and, as he stepped out on the sidewalk, he saw a car was parked immediately in front of his store and just back of it was a Chevrolet Impala, a dark-colored car, and defendant was under the wheel and had the motor started. The lady was sitting close to him and was showing him something she had in her hand. When she saw Mr. Ames she put her hands down in her lap. Mr. Ames motioned to defendant and said, 'Hold it, I want to talk to you.' However, defendant didn't 'hold it', but 'took off very speedily around this other car.' Mr. Ames took the license number of the car and observed it as it went through two stop signs without stopping.

At the trial Mr. Ames identified defendant as the man who had been at his store on the occasion in question, and he also identified three exhibits, to wit: two sets of ladies' rings (each consisting of an engagement and a wedding ring) which had been in one of the trays that he put on the counter and also one gentleman's ring, which had been shown to defendant. He stated that all of the rings were his property and were missing from his store after defendant's visit. He fixed the value of one set of ladies' rings at $350, the other set at $300, and the gentleman's diamond ring at $225.

On cross-examination Mr. Ames testified that he was facing the defendant at all times; that he didn't know whether or not the defendant personally took the rings from his store; that he did not see defendant take the rings; and that part of the time defendant was about ten feet away from where the rings were placed on the counter. Defendant wore a dark suit with large patch pockets.

Other testimony tended to show that about five o'clock on the same afternoon (March 25, 1960) the Sheriff of Clinton County, William Ditto, went out to a particular place on a country road or 'lane' about three quarters of a mile northwest of Plattsburg in Clinton County. The place was about a quarter of a mile west of County Road 'Y'. At a gate on the north side of the mentioned 'lane', the sheriff found a box filled with different articles of women's and men's clothing, skirts, suits and other articles, some of which bore sales price tags. He also found a new chain saw beside the box. He took this box and the chain saw to his home and while he and his wife were examining the articles from the box they found five rings in the toe of a ballerina shoe. The five rings were those offered in evidence at the trial and identified, as stated, by Mr. Ames as his property.

About 6:30 p. m. on the same day the sheriff called one of his deputies and sent him out to 'stake out' the place where the sheriff had removed the box and the chain saw from beside the road. About 7:30 p. m. the deputy 'radioed' the sheriff and the sheriff went out immediately to the place where he had found the mentioned merchandise. When he arrived, he found the deputy with an automobile across the road some 200 yards west of the place where the merchandise had been found. The sheriff drove his car in from the east on the same road and between them was a car with two men in it. It was a '58 Dodge. The two men were ordered out of the car and placed under arrest. Defendant was one of the men, and he was seated under the steering wheel of the car. The men were taken to the sheriff's office where they were questioned by the sheriff and others. Defendant admitted that he had been in Cameron on the evening in question to see about a horse or something, and that he had a girl with him. He further stated that he and the girl were in the jewelry store in question; and that the girl had some rings in her hand on the way home after they left Cameron. On the same night the defendant also told the sheriff that he was out on this 'lane' looking for a poker game and that he and the other fellow were both looking for a game in Excelsior Springs. On cross-examination the sheriff said the defendant may have denied he was in Cameron on the night of his arrest, but that he didn't deny it the next morning.

Defendant took the stand in his own behalf and testified that he worked at Sheffield Steel; that he lived at 8819 South Noland, Kansas City, Missouri, near Raytown, where he owned thirty-seven acres; that he bought livestock, traded horses and other livestock; and that he was not in Cameron on March 25, 1960. He further denied that he had told the sheriff that he was in the jewelry store with a woman on that date, or that she showed him any rings in the car. He further testified that at the time of his arrest he was on his way to Cameron to buy some livestock, but that the fellow with him was driving and they got lost 'going to Cameron'; and that as they were driving up the road, or 'lane'; in question, they came upon a police car across the road, and they just kept sitting in the car until they were ordered out.

The motion for judgment of acquittal presented at the close of all the evidence charged that the State had failed to prove facts sufficient 'to constitute a cause of action against the defendant'; and tht the facts 'attempted' to be proven in this case were insufficient, as a matter of law, to prove defendant guilty of the charge or to constitute substantial evidence against him. In determining the issue presented we consider the evidence favorable...